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Employment Insurance - Wages. Ristorante a Mano Limited v. Canada (National Revenue)
In Ristorante a Mano Limited v. Canada (National Revenue) (Fed CA, 2022) the Federal Court of Appeal considered restaurant tips as pensionable employment and wages for CPP and EI purposes:[31] Canadian Pacific considered whether gratuities paid to hotel employees were insurable earnings under the Unemployment Insurance Act, 1971, S. C. 1970-71-72, c. 48, the predecessor to the EIA. Organizers of functions (such as banquets or conferences) hosted at the Château Frontenac, a hotel owned by Canadian Pacific Ltd (CPL), paid CPL, without obligation, gratuities for distribution to its employees. Under the terms of the governing collective agreement, 80% of those gratuities were distributed to the hotel employees governed by the collective agreement who worked during the relevant function.
[32] In Canadian Pacific, the Supreme Court said the meaning of "“insurable earnings”" is what was important. At that time, the relevant regulation defined a person’s insurable earnings as "“the amount of his remuneration, whether wholly or partly pecuniary, paid by his employer in respect of a pay period, and includes…any amount paid to him by his employer as, on account or in lieu of, or in satisfaction of … a gratuity”".
[33] While much of the Supreme Court’s decision focuses on the meaning of insurable earnings in the context of the legislation as it then existed, the Supreme Court identified the purpose of the legislation as paying "“to persons who have lost their employment, benefits calculated in terms of a percentage of their insurable earnings.”" (Canadian Pacific, at para. 25). In that context, the Supreme Court said that" “remuneration”" should be given a broad meaning and could include "“a tip paid to the employer for distribution to his employees.”" The Supreme Court also said "“the word ‘paid’…can equally well mean mere distribution by the employer or payment of a debt owing by him”" and that "“if one gives the word ‘remuneration’ a broad meaning, one must also give a broad meaning to the word ‘paid’.”" (Canadian Pacific, at para. 20).
[34] The appellant considers Canadian Pacific to be a distribution case. In contrast, it says, its circumstances are closer to Lake City Casinos Limited v. Minister of National Revenue, 2006 TCC 225, affirmed 2007 FCA 100, [Lake City], a case the appellant characterizes as a conversion case.
[35] In Lake City, the issue was whether gratuities patrons of the casinos left with the employees in the form of cash or casino chips were paid to the employees by their employer. The Tax Court concluded they were not. However, Lake City was decided based on an agreed statement of facts that the Tax Court said precluded a finding that the casino had the tips to give back to the employees (Lake City, TCC, at para. 46). The Tax Court found the tips "“never [became] the property of (or even commingled with the property of) the employer”" (Lake City, TCC, at para. 63). In other words, in Lake City, it was agreed that the employer never had possession of the tips and did not transfer them to the employees.
[36] This Court dismissed the Lake City appeal from the bench. While brief, this Court’s reasons are clear that the word "“paid”" should be given a liberal interpretation, consistent with Canadian Pacific and, if the tips come into the possession of the employer who then transfers them to the employees, that is sufficient to conclude they are paid by the employer. Given the agreed facts, this Court agreed it was open to the Tax Court in Lake City to hold that the tips were not distributed by the employer.
[37] In contrast, there is no dispute the electronic tips came into possession of the appellant or that the appellant transferred the due-back, representing a portion of those electronic tips, to the servers. The electronic tips were converted to cash and deposited in the appellant’s bank account; the appellant used funds from its bank account to pay a portion of those electronic tips, the due-backs, to the servers.
[38] The appellant pointed out, that after Canadian Pacific, the definition of insurable earnings was amended. In my view, the amendments to the definition do not affect the principles articulated in Canadian Pacific, as reiterated by this Court in Lake City. In that regard, I agree with the Tax Court’s comments in Andrew Peller Limited v. M.N.R., 2015 TCC 329, at paras. 55-59.
[39] The appellant seeks to draw distinctions between its case and cases in which the employer was found to have paid tips to its employees. To do so, the appellant points to such factors as the tips having been pooled, tips having been shared with others by the employer, the employer coming into possession of both cash tips and electronic tips, and the employer exerting control over the distribution of the tips, suggesting none of these facts are present in its case.
[40] While I do not accept the appellant’s contention that none of these factors are present in this appeal, more fundamentally I disagree with the suggestion the distribution cases identified by the appellant were decided on the basis of those factors. Similarly, in my view, nothing turns on the method of payment (cash, direct deposit, set off, direction, or otherwise). Method of payment should not be confused with who has paid.
[41] To be clear, in determining whether a tip is an amount paid by an employer, and whether that amount is in respect of employment, factors such as when the amount is paid (daily, weekly, at the end of a pay period or at some other time), whether the employee is paid all or some portion of their own tips or pooled tips, whether the employer keeps a portion of the tips, or whether the tips are distributed under a collective agreement, a written contract, an oral agreement or otherwise, may be of little or no relevance in a particular case and are not determinative.
[42] Rather, in each case, the question to be answered is whether the employer paid the amounts to the employees in respect of their employment. How it is answered in any particular case depends on the facts as found by the Tax Court based on the evidence in that case.
[43] Here, citing Canadian Pacific and Lake City, the Tax Court identified the applicable test as "“simply, whether it was the employer who ‘paid’ (liberally construed) the tips to the servers”" (Reasons at para. 44). Applying that test, the Tax Court concluded "“the subject tips were… ‘paid’ to the server employees by [the appellant].”" In particular, the Tax Court noted that the "“electronic tips had not previously been paid to or otherwise [been] in possession of the servers.”" Rather, the appellant’s customers "“had tendered to [the appellant] their electronic tips (as an added part of each patron’s single electronic payment made to [the appellant] in settling [the appellant’s] dining invoice)”" (Reasons at para. 45). There was ample evidence before the Tax Court to support these conclusions.
[44] Accordingly, the Tax Court concluded the due-backs were "“contributory salary and wages of the employee paid by the employer”" for purposes of the Canada Pension Plan and "“insurable earnings”" for purposes of the EIA.
[45] I see no error in the Tax Court’s articulation of the test or in its application to the facts as found by it.
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